Archives for February 2005

I’d like to go refreshingly off-topic for a moment and point you all to an excellent column by political strategist Dan Carol, “Rebuilding Labor.” Written as an open letter to national SEIU President Andy Stern, Dan shows once again why he is one of the most creative strategic minds in progressive politics.

Dan isn’t just talking about rebuilding labor. He wants to re-brand it.

No, I am not weighing in with any thoughts on the internal “future of the labor movement” debate roiling on in Vegas next week. You think I am crazy? That’s not my gig.

But I did want to flag some emerging, massive opportunities that SEIU, and all unions, can capture in areas that aren’t traditionally the province of labor.

I’m talking about building the union halls, community centers and even the malls of the 21st century.

Because right now, as you well know, Wal-Mart is winning.

Dan delivers the bad news (at least to unions) that with a growing “freelance economy” of some 10 million independent workers and 25 million part-timers, the workplace is no longer a central gathering place. He warns that unions will continue to shrink in size and influence, unless they stretch beyond their traditional vision of workplace organizing and better benefits.

Dan argues that labor needs to reach out to “non-traditional” audiences and start talking about more than just the need for workers to organize, but about education and child care and other pressing issues. How?

I’m talking about the appeal of Apple’s iPod stores.

I’m talking about creating places for mixing together

A tip of the hat to Paul for pointing me towards this Letter to the Editor in The Olympian:

Republicans are party of choice for prisoners

I write regarding the Republican hot-button issue du jour — felons voting.

The federal prison camp where I was ensconced recently for 16 months housed a large number of white-collar criminals — CPAs, investment bankers and stockbrokers, corporate lawyers, CFOs and CEOs, who were Republicans almost to a man, and had their Wall Street Journals mailed to them daily.

Indeed, almost the only progressive-minded souls there were in the sparse ranks of us pot growers, together of course with many of the political prisoners.

During my taxpayer-subsidized sabbatical, I initiated countless discussions with fellow inmates designed to assess their political preferences.

What I found was that the huge plurality of inmates where I was, of all ethnicities and backgrounds (most of them, like Big Pharma, common drug peddlers), were fundamentally apolitical — most of them having never voted, ever, or even registered to vote, and could not have cared less about being denied their right to vote.

Yet, when asked whether they preferred a liberal Democratic or Republican candidate or philosophy, they, like the white-collar guys, consistently chose Republican, by margins of 65 percent to 80 percent.

Why?

Because in their view, Republicans were the virile, tough, action-taking, man’s-man party, while liberals and Democrats were reviled as soft, weak, passive, femme — minority and gay-hugging pushovers and saps.

So why, I wonder, should Republicans have their undies in a knot about felons voting when from my direct experience Republicans clearly are the red-blooded all-American felon’s party of choice?

Brydon Stewart, Olympia

Republicans are “the virile, tough, action-taking, man’s-man party?” Gee, I don’t know… looking at soft-spoken Dino, I’m guessing that if he had gone to prison like his mentor, he probably would have ended up becoming somebody’s bitch. But I guess that would have made him a “man’s man,” wouldn’t it?

TJ over at Also Also has posted a thorough reporting of the transcript of Chelan County Judge John Bridges rulings, and how they might impact Dino Rossi’s prospects of setting aside the gubernatorial election. (Cliff Notes Version: “It don’t look so good for Rossi.”)

TJ split his post between the morning session (Part I) and the afternoon session (Part II). For the sake of dramatic arc, read both. But if you just want to skip to the juicy stuff, go straight to Part II. I won’t post in detail on the entire transcript, because TJ’s fine analysis has sufficiently satisfied my latently wonkish tendencies. Instead, I thought I’d focus on the all important issue of the burden of proof.

While Judge Bridges never explicitly rules on the burden of proof necessary to set aside an election, TJ correctly points out that he drops several huge hints. One of the biggest is when he discusses RCW 29A.68.110‘s apparently high standard for setting aside an election. Judge Bridges explains:

This same requirement was recognized early in our state’s history when in 1912 our Supreme Court in Hill v. Howell held that when there was no evidence to show for whom the elector voted and because both candidates were innocent of wrongdoing, the vote must be treated between the parties as a legitimate vote.

Remember everything I’ve written about how acceptance of uncertainty is implicit in our election statutes? Well this very pragmatic principle is clearly expressed in an excerpt from Hill v. Howell, which TJ courteously provides to his readers:

An election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters been allowed to participate. Individuals may suffer wrong in such cases, and a candidate who was the real choice of the people may sometimes be deprived of his election; but it is generally impossible to arrive at any greater certainty of result by resort to oral evidence, public policy is best subserved by allowing the election to stand, and trusting to a strict enforcement of the criminal laws for greater security against the like irregularities and wrongs in the future.

TJ calls this the “Shit Happens” ruling, and while it may offend the sensibilities of Rossi supporters, this is exactly why they will find a court of law to be a much tougher venue than the court of public opinion. They can allege all the felon votes they want, but according to RCW 29A.68.110, unless they can prove these votes likely changed the outcome, well… shit happens.

In moving on from illegal votes to other irregularities, Judge Bridges again signals that he believes the same high burden of proof should apply. He points out that few election contests succeed, and he suggests that there are “some well-recognized presumptions, if not policy reasons, why elections should not be overturned.”

For instance, do we as voters and as constituents of candidates want to engage in what one judge referred to as seasons of discontent commencing the moment after the polls close on election day.

Um… I don’t. But apparently Dino Rossi, Chris Vance, the BIAW and right-wing bloggers and talk-radio hosts have no compunction about trashing the integrity of our electoral process in the interest of a short-term political gain.

If, as the Rossi campaign continues to claim, they need only show that there were more errors or illegal votes than Gregoire’s 129-vote margin, it would be an invitation to contest nearly every close election. How close is too close? If Mark Sidran had challenged Deborah Senn’s victory in the attorney general primary, could the contest ever have been decided in time for the general election?

These are pragmatic considerations, embodied in law, and that’s why (un)Sound Politic’s OCD-like focus on the so-called voter-credit “discrepancy” is a legal red herring. They continue to cry scandal, charging that King County has not proven it actually reconciled the election results… but they have the burden of proof exactly backwards. As Judge Bridges explains:

Our Supreme Court has observed that election officers are presumed to have complied with the duties required of them in an honest and careful manner. That was the Quigley case. And also in Quigley the Court noted that the returns of any election official are entitled to the presumption of regularity…. And in McCormick v. Okanogan County in 1978, the Supreme Court observed that informality of irregularity in an election that does not affect the result is not sufficient to invalidate the election.

King County didn’t properly reconcile election returns? Prove it. Subpoena the binder and the poll books and prove they didn’t do their job. I think the court will agree that “the duties required” of KC Elections do not necessarily include giving Snark everything he wants in .XLS file format.

But let’s forget for a moment what is or is not an “irregularity,” and get back to the burden of proof for such “misconduct.” On this, Judge Bridges could not be clearer:

With respect to misconduct, whether that misconduct falls in 020 or 011, I think the standard is 29A.68.070, and so I want to say that so you folks have some sense of what I think the ultimate standard of proof is and what the petitioners have to show.

Stick a Foulkes in it, this case is done!

For those of you have followed my analysis (“Foolish Foulkes“) based on my correspondence with “Lawyer X”, I’m beginning to look awfully damn smart right about now. Rossi’s attorneys have based their case primarily on Foulkes v. Hays, claiming the court is not constrained by the narrow standards and remedies set out in the contest statute. But as I previously pointed out, Foulkes was decided on a section (now .011) that has since been pulled inside the framework of the contest statute. Rather than considering .011 in isolation, Judge Bridges has clearly stated that its burden of proof is that set forth under .070.

And in perhaps his most devastating ruling of the day (at least, to Rossi), Judge Bridges indicates that, unlike Foulkes, the contest statute constrains available remedies as well.

I would note first that the Foulkes case, which is indeed a case that I relied on heavily today, I’m sure to the consternation of the intervenors, has now been cited again to me by the petitioners, but at this time I’m going to distinguish the Foulkes case from what I have to decide here because in the Foulkes case, our Supreme Court was faced with the prospect of addressing the election of a county commissioner. And here, this Court is faced with a state executive officer and there are certain constitutional provisions that attach to a state executive officer.

The judge then goes on to cite several constitutional and statutory provisions, before concluding that “a statewide special election is not permitted by Washington’s election contest statute” nor the state constitution.

But a new election was exactly the remedy ordered by the court under .011 in the Foulkes decision. In Foulkes, the court reached to its “general equity jurisdiction” to order a new election, but Judge Bridges clearly and concisely concludes his ruling by stating:

The Court doesn’t have that authority under the statute, or the Constitution, and the Court thinks it should not exercise it on the grounds of equity.

If the court doesn’t have the authority to devise its own remedy, then it also doesn’t have the authority to devise its own standards, and thus the burden of proof is that set forth in .070 and .110. It is not enough that disputed ballots may have changed the outcome of the election, it must appear that illegal votes and other irregularities actually did change the outcome. We can argue all we want over the meaning of the word “appear” (the dictionary says “seems likely,”) but in order to prevail, it appears that Rossi must actually provide evidence that he received more legitimate votes than Gregoire.

I have quoted entirely from the afternoon session, but in closing I want to go all the way back to Judge Bridges first ruling of the day, when he narrowly ruled that the court had “subject matter jurisdiction” over the contest, but set the tone for the rest of the day by immediately citing Dumas v. Gagner as a caveat.

Election contests are governed by several general principles. Chief among them is the principle long followed by this Court that the judiciary should exercise restraint in interfering with the elective process which is reserved to the people in the state Constitution. Unless an election is clearly invalid, when the people have spoken, their verdict should not be disturbed by the courts.

“Clearly invalid.”

That’s a pretty high standard. As it should be.

I just sent the following email to Tim Eyman. Think he’ll accept my olive branch?

From: “David Goldstein” david@horsesass.org
Date: Wed Feb 23, 2005 12:38:53 AM US/Pacific
To: “Tim Eyman” insignia@greekwatch.com
Subject: Please join me in supporting SHJR 4205

Dear Tim,

I can’t tell you how much it saddens me that we haven’t been able to develop a more constructive, working relationship. Indeed, some might even describe us as downright adversarial.

For example, you sponsor an ill-conceived, boneheaded initiative, and I oppose it. You send out a deceptive, misleading press release, and I refute it. You cook the books to hide the fact that you are using initiative campaign contributions to fund your personal compensation committee, and I file a complaint with the Public Disclosure Commission.

And then, of course, there was that whole “Tim Eyman is a Horse’s Ass” initiative. While I’m sure we both had a good laugh at that one, I’m guessing we were probably on opposite sides of the issue. (I was for it.)

But I think I have finally found an issue we can both support.

This week the state House passed by a 73-25 margin, a constitutional amendment that would eliminate the 60% super-majority required by local school levies. The amendment faces a tougher challenge in the Senate, but if it passes by two-thirds, it will be sent before the people for their approval.

As a self-proclaimed champion of direct democracy, you have time and again admonished our elected officials and judges to honor the will of the people. In defense of your own initiatives — even the really, really stupid ones — you have argued that voters, not politicians, should be trusted to choose the kind of government they want. Thus I am confident that you will agree with me that the super-majority amendment can and should be decided directly by the voters… for to contend otherwise would be hypocritical.

That’s why I urge you to join me in asking the Senate to approve SHJR 4205. I suggest we draft a joint letter, instructing our respective supporters to contact their state senator, and demand that the people be given the opportunity to decide this important issue for themselves. Since I happen to have a copy of your list, I’d be happy to directly email your supporters on your behalf.

This is a terrific opportunity, not just to strike a blow for direct democracy, but for you to jump-start your stalled initiative career by supporting something that actually has a chance of passing. You’ve had two consecutive years without an electoral victory, and you’ve got to admit, this year’s performance audits initiative was dead on arrival. (Oh man… what were you thinking?) This is a chance for you to briefly be relevant again.

Given the opportunity to work together, I believe we can make a positive impact on all of Washington’s citizens, as well as learn a little something from one another. For example, I could teach you how to directly answer a reporter’s questions… and I understand you could teach me a few creative accounting tricks.

I look forward to our new partnership, and eagerly await your reply.

Affectionately yours,

David

Yesterday the state House passed by a 73-25 margin, a constitutional amendment that would eliminate Washington’s archaic 60% super-majority requirement for local school levies. While the bill passed with bipartisan support, it will face a much tougher battle in the more closely divided Senate. Constitutional amendments require a two-thirds vote in both houses of the Legislature, plus a simple majority by the people.

The 60% super-majority requirement for school levies is a relic of a bygone era, when Washington was predominantly an agricultural economy, and property taxes were the major source of revenue for both state and local governments. It was originally instituted to make it more difficult for townspeople in rural communities to dramatically drive up taxes on the surrounding landowners.

What might have made some sense in the Depression-era, agricultural economy of the 1930s, makes absolutely no sense in the post-industrial economy of the 21st century. The fact that most school levies pass, is a tribute to the common sense of Washington’s citizenry. But the fact that most just barely pass — or on the second or third try — is a warning of how financially fragile our struggling school districts already are.

Eliminating the super-majority requirement is not a recipe for runaway property taxes, as some Republicans contend. State law prohibits school districts from raising more than a certain percentage of their operating budgets from local levies, and most districts are already at or near their statutory limit. But that is beside the point. If a majority of voters choose to tax themselves to improve their children’s education, a minority of voters should not be able to stymy them.

Local school levies are held to a ridiculous and unsustainable standard. In a political climate where consensus is increasingly difficult to come by, a 60% margin would be considered a landslide for nearly any ballot measure or office outside of a gerrymandered safe district. Voters overwhelmingly support spending more money on education, and it is incomprehensible to deny the will of the people on the grounds that their support is not overwhelming enough. To continue to give 40% of voters veto power over investing in our children’s education, is not only bad policy… it’s undemocratic.

And in the end, democracy is what this is all about. Republican opponents in the Senate should be encouraged to put aside their concerns and let this issue be decided by the people. If a majority of the people decide that school levies should be decided by a majority of the people… well… you can’t get much more democratic than that.